By Joshua Mitson
Since President Trump’s inauguration a wave of “anti-sanctuary city” bills have been proposed by state legislatures across the country. Last Thursday, one of the most extreme variations of these bills was approved by the Texas state legislature and on Sunday, Governor Greg Abbott signed it into law.
Senate Bill 4 (SB 4) is, in many ways, a standard anti-sanctuary policy – it compels local law enforcement agencies to honor ICE detainers, it forbids campus peace officers from obstructing local police from inquiring into immigration status of arrestees and compels reasonable co-operation from municipalities in assisting ICE fulfil its immigration policing functions.
But, hidden in its penultimate section, SB 4 permits activity that is sure to inject sheer terror into Texas immigrant communities. Under the new law, scheduled to go into effect on September 1, a municipal government employee or campus police officer is forbidden to prevent or materially limit a local law enforcement agency from assisting or cooperating with an ICE officer, including an inquiry into the immigration status of anyone who is under lawful arrest or detention. § 752.053. This provision alone was hotly contested during the Senate’s debate as the bill expands the questioning authority to those merely detained by an officer, not just those legally arrested. It treads on thin constitutional ground if questions about immigration status result in prolonged detention. As recently as its 2012 decision about Arizona’s S.B. 1070, the so-called “show me your papers” law, the Supreme Court has repeatedly cautioned police from holding someone against their will simply to look into their immigration status.
But where SB 4 really spreads its authority into dangerous constitutional grounds is that under § 6.01 any officer may inquire into the nationality and immigration status of a victim or witness if it is “necessary” to investigate an offense, or to provide a victim or witness with information regarding “federal visas designed to protect individuals providing assistance to law enforcement.” This cordially phrased provision, on its face, permits an immigration status inquiry of any person involved in a crime, regardless of whether or not they are a suspected perpetrator – including victims and innocent witnesses. Advocates for immigrants and domestic violence survivors often voice concern that police questioning of abused partners will chill willingness to cooperate. Already Harris County, which includes Houston, has seen a forty-two percent drop-off in Latino reports of rape and a thirteen percent drop in reports of other violent crimes. For its part, the Trump Department of Homeland Security says it can’t guarantee that crime witnesses won’t be questioned about their immigration status. SB 4 gives new fuel to those fears.
Members of police departments across Texas are gravely concerned about this. During the House debate in April, police officers testified at length as to the fear-mongering this would spread within immigrant communities leading, they worried, to less cooperation with local police. Austin Interim Chief of Police Brian Manley stated during the debate, “I do not see the need to bring local law enforcement into the front lines of asking these questions during detentions. I think we will create situations where the trust we worked so hard to build can be eroded.” Similarly, six Texas police chiefs wrote in the Dallas Morning News that SB 4 would create “a divide between the local police and immigrant groups [and] will result in increased crime against immigrants and in the broader community, create a class of silent victims, and eliminate the potential for assistance from immigrants in solving crimes or preventing crime.”
As the bill’s House sponsor Representative Charlie Geren conceded during seventeen hours of debate, not one local police officer had come forward in support of the bill. But this minor inconvenience was ignored. As was repeatedly cited, SB 4 was unnecessary in the state – Texas leads the nation in compliance with ICE detainers at a rate of 99.7%. Such evidence was ultimately ignored, along with reams of proposed Democratic amendments to limit SB 4’s scope and punishment power. All but one failed.
And as such, SB 4 vehemently punishes those who oppose it. Municipalities have their sovereign immunity explicitly waived, exposing them to fines upward of $25,000 per day for every day that they demonstrate a pattern of behavior that denotes a failure to co-operate with ICE investigations and detainers. Schools, universities and similar local entities are all liable. Only places of worship are exempted. Elected officials can be removed from office if found guilty. Sheriffs stand to not only lose their jobs, but can be found guilty of a misdemeanor and subject to a year imprisonment.
Advocates have already promised lawsuits trying to stop SB 4 before it goes into effect in September. Rather than wait, Texas launched a preemptive attack on possible constitutional challenges by asking a federal court to declare the bill constitutionally sound.
Joshua Mitson is a rising third-year student at the University of Denver Sturm College of Law and President of Sturm’s Immigration, Refugee and Asylum Coalition. He received his BA in Politics and International Relations from the University of Westminster in London, where he grew up. He is currently a law clerk at The Meyer Law Office in downtown Denver.